Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Motion made, and Question proposed, 
That the Order of the Committee [17th December] be further amended, by leaving out paragraph (5) and inserting— 
 '(5) the proceedings on Clause 62, Schedule 4, Clauses 63 to 97 and Schedule 5 (so far as not previously concluded) shall be brought to a conclusion at 5.50 pm on Thursday 23rd January 2003; 
 (5A) the proceedings on Clauses 98 to 119, Schedule 6 and Clauses 120 to 125 (so far as not previously concluded) shall be brought to a conclusion at 6.50 pm on Tuesday 28th January 2003;'.—[Hilary Benn.]

David Heath: I am most grateful for the opportunity to speak about the Programming Sub-Committee. I thank the hon. Members for Nottingham, East (Mr. Heppell) and for Rayleigh (Mr. Francois) for their co-operation in achieving a very satisfactory result in that Committee and, indeed, in this Committee's proceedings so far. It is important that we have adequate time to discuss the very real issues raised by a Bill of such length and complexity, but we might not have done had we proceeded with the initial programme. Having made the necessary changes, which I commend to the Committee, we are now in a position to proceed in good order.
 Question put and agreed to.

Clause 81 - ''Bad character''

Simon Hughes: I beg to move amendment No. 467, in
clause 81, page 50, line 10, after 'which', insert 'clearly'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 468, in 
clause 81, page 50, line 10, after 'which', insert 'conclusively'.
 No. 361, in 
clause 81, page 50, line 10, leave out 'or tends to show'.
 No. 362, in 
clause 81, page 50, line 11, leave out '(a)'.
 No. 469, in 
clause 81, page 50, line 11, leave out 'committed an offence' and insert 
 'been convicted of a previous offence of similar facts as the one with which he is charged'.
 No. 363, in 
clause 81, page 50, line 11, leave out from 'offence' to end of line 13.
 No. 395, in 
clause 81, page 50, line 12, leave out 
 'or is disposed to behave'.
 No. 434, in 
clause 81, page 50, line 13, at end insert 
 ', and includes a question put in proceedings which makes reference to, or is asked with a view to eliciting, such evidence'.

Simon Hughes: Amendment No. 467 is in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath). We also tabled amendments Nos. 468 and 469, and put our names to amendments Nos. 361, 362 and 363.
 The clause is at the beginning of part 11, which is very important. It deals with evidence and, in particular, evidence about character. Party colleagues and members of the Select Committee on Home Affairs have the greatest concerns about the Government's proposals, and we shall gradually build up the arguments as we seek to amend the different elements of the Bill. To put matters simply, however, there is concern that allowing evidence about character to be introduced much more frequently will result in significant prejudice to the defendant, who should be judged on the facts in the case, not the facts of his life. 
 Clause 81 defines bad character, but our probing amendments would amend the definition by reducing the opportunities—or raising the threshold—for introducing evidence of bad character. We table them without prejudice to our view that the whole proposal has major defects, and we shall argue that it gives rise to a significant prejudice, which is not dealt with. Through the amendments, we seek to temper the extreme nature of the proposal. 
 Amendment No. 467 would insert the word ''clearly'' so that the clause read: 
''For the purposes of this Chapter, evidence of a person's bad character is evidence which clearly shows or tends to show''.
 Amendment No. 468 is a stronger alternative, which would insert the word ''conclusively'' in the same place. Amendment No. 469 concerns a different, but important, point. Paragraph (a) reads: 
''he has committed an offence''.
 The issue should not be whether someone has committed an offence; it should be whether they have been convicted of an offence. What a person did in the past should not count, irrespective of whether it has been proved. The justice system works reasonably well on the basis that the ticks are in the box once you have been charged and found guilty or you have admitted your guilt. I hope that the Minister sees the importance of making sure that amendment No. 469 is accepted. The wording in the clause is completely wrong, and we should take care not to go down that road. 
 The first of the joint amendments, amendment No. 361, would remove the words ''or tends to show'' for evidence showing ''bad character''. Like our Conservative colleagues we believe that it is not enough that evidence ''tends to show''—it must ''show''. It must be straightforward. Perhaps we could debate later how we can alter that threshold. 
 Amendment No. 362 is a probing amendment, and would have the same effect as our amendment on ''been convicted'' rather than ''committed an offence''. It aims at the same objective of replacing the words 
 ''committed an offence'' with something more acceptable mentioning the fact that there has been a conviction. I hope that the Minister will accept that it is ''conviction'' that is material, not commission of the offence. 
 Amendment No. 363 is a probing but important amendment, which would reduce the test simply to previous convictions. That is because clause 81(1)(b) is an extremely—extraordinarily—widely drawn precondition. It suggests that the ''bad character'' test, which is the test of when something can be triggered through admission, could be met if evidence shows that the defendant 
''has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person''.

James Clappison: I am listening with interest to the hon. Gentleman. I may not agree with him entirely, but there is something in what he says. Does he agree with me that few of us can honestly say that we could pass that test?

Simon Hughes: I wonder whether any of us in the Committee, if we were summoned for an offence before a court, could not be said to have behaved or have been disposed to behave—which is much more subjective—in a way that might be viewed with disapproval. That opens a Pandora's box of possibilities. I doubt that there is a member of the Committee who has not said or done many things that will have been viewed with disapproval by some of their constituents—and they are the people whom we are trying to keep happy. It is impossible to judge, for all sorts of reasons. We are getting off on a very wrong foot.
 My hon. Friend the Member for Somerton and Frome and I have considerable concerns about this part of the Bill. Perfectly good reasons exist to get rid of the old uncertainties and to replace them with new certainties. We do not dissent from that view. There may be very good reasons to remove the common law rules and replace them with a codification of rules. I have signed up to that in principle. 
 Good arguments exist that rules of evidence about character should be included in one place, so that everyone who is involved in criminal law can find them. That would advantage not only lawyers but lay people and, indeed, defendants. Defendants who end up in prison spend a great deal of time looking through Acts, if my post—and other people's post—is anything to go by. 
 It is very important that we understand that there are obvious occasions when a person's bad character features in the case. The most obvious example is when an individual challenges someone else's character. If a person asserts that someone else is untruthful, it is quite reasonable that he can expect the fact that he may also be untruthful to be put in court for the jury to consider. If an individual asserts that someone else has a previous conviction, he cannot expect the trial to take place without his previous convictions being asserted. There are logical occasions when character 
 comes into the frame. However, that is done by choice and because there is a specific reason for it to happen. 
 A defendant will sometimes agree to include references to his character, and that is entirely reasonable. We can all think of many cases in which someone will admit to something in public because he believes that it is better to come clean. Whether through correspondence as MPs, from what we have read in local newspapers, or from cases with which we have been involved, we have all had experience of cases in which the defendant is honestly not guilty. However, because the usual suspects are the easiest suspects to pick up, sometimes a person who is not guilty may say that he has committed similar offences before but has been going straight for five years. He has a job, has settled down, and has a girlfriend, or a wife and kids. He honestly has not committed the crime, and he does not mind whether the jury know that he has ''previous''. That is reasonable to say. However, it is unreasonable for other people to elect to make that information known without safeguards. 
 This is similar to the previous sitting, at which the interventions from the hon. Member for North Down (Lady Hermon) were so effective. I know that the Minister will say later on whether there is a fair trial test. However, that is all about a proposal to change the presumption. If the clause is passed unamended then, instead of presuming that a person's previous criminal history should not be in the frame, previous criminal history will be the starting point, and the defendant will have to show why it should not be. We regard that as a considerable disadvantage. 
 I hope that colleagues in other parties will contribute in a moment to stand up against the most extreme and widely drawn parts of clause 81. We must also look carefully, as the hon. Member for Beaconsfield (Mr. Grieve) regularly argues, at the exact wording that is before us in each of the definitions. I appreciate that clauses that give definitions are not the most exciting ones. However, they are crucial as we go through this part, which contains many definitions. If we get the definitions wrong, and if we draw them too widely, significant injustice will be done. 
 I end by saying that the Home Affairs Committee was very clear that it had difficulty with the proposal to allow previous convictions to be automatically admitted at trial. It believed that that could lead to miscarriages of justice. Research supports that, so it is not just speculation. The Home Affairs Committee made two points in particular. It said that to allow previous convictions to be automatically admitted makes weak cases persuasive. One only has to add in the fact that that person has been guilty of an offence before, and the rest of the straws suddenly come together to make a brick for the jury—or might do. We should also be careful, because the provisions would allow usual suspects to be collected much more often, and put them at risk of being brought before the courts more regularly. 
 I hope that hon. Members not only will be sympathetic to the amendment, but think carefully about phrases such as, ''tends to show'', which is loose, 
 and, ''has committed an offence.'' We should be talking about convictions, not offences.

Humfrey Malins: I shall speak to amendments Nos. 361, 363 and 395. I echo the words of the hon. Member for Southwark, North and Bermondsey (Simon Hughes) in saying that we have got off on the wrong foot. We are dealing with the issue of a defendant's character—a very important issue indeed. It is worth pointing out that the current system has not worked badly, and that there is no great cry from any who speak with authority for the widening of the scheme that the Bill would impose.

Lady Hermon: Could the hon. Gentleman outline the present system and tell us what evidence of previous convictions is currently available, for the benefit of those of us who are not criminal lawyers? That would help us to understand the huge change.

Humfrey Malins: Certainly. The current position is that if a person of good character with no previous convictions is in the dock, the judge will give a direction to the jury that says that that good character not only supports the defendant's credibility—his ''believableness'', if there is such a word—but is relevant in considering his or her propensity to commit a crime. There is therefore a positive direction in favour of the defendant. Previous convictions are currently admitted in about 20 per cent. of cases, for various reasons.
 First, as the hon. Member for Southwark, North and Bermondsey said, if a defendant attacks the character of a witness, they cannot expect their own character to be kept out of the case. For example, if the defendant, through his counsel, says to the policeman, ''You're a liar, you're a cheat, and you're dishonest in the evidence you're giving,'' the defendant's character can be considered. 
 Secondly, the defendant's character can be considered by consent. Sometimes a defendant will say, ''As a matter of fact, it's true that I've got six previous convictions for dishonest offences, but in each case I pleaded guilty. This is the first time I have ever pleaded not guilty, and that can be confirmed.'' Saying that can sometimes work to a defendant's advantage. 
 The third situation is much less common and is called ''similar fact evidence''. If one is charged with burglary and one has a string of previous burglaries that have a strikingly similar fact in common, such as the leaving of a calling call or a particular modus operandi—the courts will not accept it unless it is strikingly similar and narrowly defined—character will be considered.

Paul Stinchcombe: I am no criminal lawyer, but will the hon. Gentleman confirm that the matter is slightly broader than he says, in that previous allegations that did not result in convictions can, in certain circumstances, also be admitted? Strikingly similar fact evidence is not the only thing that can lead to the admissibility of previous bad character evidence: anything that gives rise to the conclusion that the probative value of those previous
 acquittals or convictions outweighs the prejudice that would be done to the defendant can also do so.

Humfrey Malins: Yes. The hon. Gentleman is right and refers, I think, to the case of R v. Z. Some of us may not approve of that, but that is by the by. Equally, the overall saving grace is the judge's discretion, usually under section 78 of the Police and Criminal Evidence Act 1984. It would take a powerful Crown argument to persuade a judge to move away from defending the interests of the defence.

David Cameron: Perhaps one way for us non-lawyers to understand this, most controversial, part of the Bill is to think that the Government are codifying current practice and then adding to it. Paragraphs (a), (b), (f), (g) and (h) in clause 84(1) all codify existing practice, and (c), (d) and (e) introduce new and controversial provisions. Does that help?

Humfrey Malins: My hon. Friend is absolutely right. There is a move to codify existing law, which is welcomed in some quarters, but the provisions go further. They establish existing law but also widen it in a way that most of us believe to be dangerous.

Dominic Grieve: I want to pick up the point made by the hon. Member for Wellingborough (Mr. Stinchcombe). Does my hon. Friend the Member for Woking (Mr. Malins) agree that, under the present rules, bad character other than convictions is rarely admitted? That is partly because people rarely investigate such issues, unless they are really pertinent to the case in question. Secondly, it is because the whole slant of the common law rules means that they do not lend themselves to such a course of action, except in exceptional circumstances. These proposals would make that commonplace.

Humfrey Malins: Yes; my hon. Friend is absolutely right. The admission of bad character in a criminal case in the circumstances outlined by the hon. Member for Wellingborough is a rare occurrence. In fact, I do not know whether I have ever come across such a situation. My hon. Friend is right. If the proposals were adopted, that would become commonplace.

David Kidney: Has the hon. Gentleman had the opportunity to read Law Commission report No. 273 on evidence of bad character? Page 52 of that report discusses a recent line of cases that admitted lots of evidence of bad character, other than convictions, called ''background evidence'', not only acquittals of Z. Does he accept that the present rules allow the admission of bad character other than convictions and that the amendments would narrow the existing law?

Humfrey Malins: I have seen the Law Commission report. I am aware of that line of cases but, unlike some of those who contributed to the Law Commission report, I have the benefit of the daily experience of the cases in which I am involved—the nuts and bolts of trials. I know instinctively that, 99 times out of 100, the protections offered to defendants under the common law, not least through the Police and Criminal Evidence Act 1984, are strictly adhered to by judges. The desire to codify the law is acceptable,
 but the present proposals would widen it a step too far, or even several steps too far, which is why my hon. Friends and I hope to be able to vote on amendment No. 363 when we come to it.
 Amendment No. 361 would leave out ''or tends to show'' in line 10, and amendment No. 363 would leave out paragraph (b) in its entirety. Amendment No. 395 leaves out the words 
''or is disposed to behave.''
 The real mischief is contained in clause 81(1)(b), which states that evidence of a person's bad character includes evidence that shows that 
''he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person.''
 As the hon. Member for Southwark, North and Bermondsey said, how wide can you get? That is the sort of phrase that could cover the conduct of so many people. Imagine trying a case in which the defendant was a man of previous good character, in the accepted sense of the word, with no previous convictions of any description. Under the clause, what would be the effect on the person's character if, for example, he had ever been given a caution? I think that the Minister must accept that, routinely, cautions are not regarded as convictions and that judges still give the ''good character'' direction notwithstanding the fact that the defendant has had a caution.

Simon Hughes: May I append to that question the matter of conditional cautions, which are a new concept introduced by the Bill?

Humfrey Malins: As the hon. Gentleman says, conditional cautions are a further aspect of the matter.
 What of a defendant who has never received a caution, but who has received a warning? Sometimes the judge will be aware of that, because a note is made of it on the antecedents. However, I suggest that 100 times out of 100 the judge will still give the good character direction, because there has been no conviction. 
 What about the defendant male who has had a civil injunction made against him, either in relation to matrimonial proceedings or in connection with other civil proceedings where his behaviour might be viewed with disapproval by a reasonable person? Is the fact that an injunction was made likely to go before the jury? If these matters go before the jury, will that be on the issue of propensity—an inclination to commit a crime; or will the issue be credibility—whether the defendant can be believed on this occasion?

Paul Stinchcombe: The hon. Gentleman is asking some interesting questions, and I shall wait for the Minister's response to them.
 Would not the proposal to delete subsection (1)(b) but to retain clause 82 effectively overturn the judgment in R. v. Z, so that if there were serial allegations of rape, separately made against the same person, there would be no possibility of admitting those in evidence?

Humfrey Malins: The hon. Gentleman makes a fair point. I retreat to the position of, first, my unease about R. v. Z as a case and, secondly, the deficiencies in my drafting ability. What I want to communicate to the Government is that I am unhappy about paragraph (b). I do not know how to get it right except by excluding it, and the amendment has enabled me to get the debate under way and question the Minister.

Lady Hermon: I hope that that hon. Gentleman does not retreat too far. In his opinion, would clause 81(1)(b) cover someone who played loud music during the night or enjoyed fox hunting? Could not those activities be viewed with the disapproval of a reasonable person?

Humfrey Malins: The hon. Lady makes the valid point that, strictly speaking, such conduct could well be argued to fall within paragraph (b). It is hopelessly wide, although as to whether any Crown barrister would really tell the court that he wanted to put before the jury an allegation that the gentleman in the dock enjoyed fox hunting, and that that brought his character into question—[Interruption.] I do not think that it would happen in practice. However, the point that the hon. Lady makes is very strong, because she has looked at the wording. We must do that, because the wording will be the law.
 I have asked for clarification about cautions, warnings and injunctions. Currently, day after day, people are brought before the court to be bound over according to law. A bind-over is not a criminal conviction. For example, people who have been a bit noisy or raucous in the street—it happens a lot—are often brought before the court, not charged with any crime, and bound over civilly to keep the peace in the sum of, say, £150 for 12 months. That does not constitute a criminal record. Such a person can go through life ticking on forms ''no previous convictions'' and ''no criminal record''. The question of completing forms about previous good character is another area that might be developed at some stage. 
 We shall find ourselves with a series of questions about people who have had no criminal conviction of any nature, but who might have experienced one of the things that I have mentioned, and find themselves subject to evidence before the court that could fall under paragraph (b). The wording 
''or is disposed to behave''
 is outrageously wide. The clause continues: 
''in a way that . . . might be viewed''
 —how wide can one get?— 
''with disapproval by a reasonable person.''
 What on earth does that mean? Who is the reasonable person who is going to express disapproval? There is no standard definition of a reasonable person. I cannot think of a wider subsection. The Home Affairs Committee disapproved of the proposition that is before us. The Minister is not slow to jump to his feet and say that right is on his side, not least because the Home Affairs Committee backs the Government on a particular issue. We have watched him doing that, and we have nodded sagely. 
 I see in his place the hon. Member for Bradford, West (Mr. Singh), who is a respected member of that Committee. No doubt, since it was, I understand, a unanimous report, he takes the view that the Home Affairs Committee was right. I am sure that he is not alone on the Labour Benches in feeling great disquiet about the way in which the position is widened in that subsection. The Minister owes it to the Committee to say that he recognises the merit and the strength of the position of the Labour-dominated Home Affairs Committee on the matter. It is very unhappy about it. 
 Justice, one of the finest organisations in the field, takes a dim view. I quote briefly from its report: 
''The proposed new regime governing evidence of bad character will include not only previous convictions and conduct which amounts to a criminal offence but also evidence that the defendant has behaved, or is disposed to behave, in a way that might be disapproved of by a reasonable person. This''—
 says Justice, and I think that we should ponder its words carefully— 
''stretches the meaning of 'bad character' beyond its natural limits and risks substantial prejudice to the defendant by the admission of lifestyle evidence which in reality has very little probative value.''
 I rest on those words. They are well crafted and they summarise the problem before us very well indeed. 
 My amendments are intended to convey the message that the scales of justice should not tip too far in favour of the prosecution. We have for generations maintained in this country a system whereby the burden of proof is, and remains throughout in a criminal case, on the prosecution. The standard of proof is high, namely that there must be certainty about the defendant's guilt. 
 If there are many problems in our criminal justice system, they are at the other end of the spectrum. The focus of our debate is not the need to catch more criminals, but that is the end of the spectrum that we should be considering. Looking at this end of the spectrum and saying that we must cure the apparent mischief caused when the Crown court acquits defendants with previous convictions is not a sensible approach. 
 Broadly speaking, the current law is right, although it could and perhaps should be codified. It would be entirely wrong to widen it to give the Crown a much better chance of bringing before the jury evidence of the defendant's background, which, although unsavoury, might not justify a criminal conviction. 
 The wording of the clause is hopelessly wide and gives rise to so many different definitions and understandings that it is an utter mess. Paragraph (b) should be removed in its entirety.

Dominic Grieve: When I first learned that the Bill would contain a proposal to codify the issue of evidence of bad character, my reaction was that it would have considerable merit. I practise in the criminal courts, and I suppose that I took the view that simplification and greater clarity might save lawyers the hours that they spend, in some interesting cases, deciding whether to apply to admit evidence of bad character.
 Although there are exceptions—the hon. Member for Stafford (Mr. Kidney) referred to a set of cases to which I shall return in a moment—it is worth repeating that evidence of bad character has tended to be admitted in two contexts. One is where an attack on the character of a prosecution witness is such that it removes the shield of the defendant. It is simple to ascertain when that has happened. It will no longer be a question of whether there is a disagreement of degree between the witness's evidence and the defendant's position—there will be an accusation of outright lying. In those circumstances, everyone is pretty well forewarned about what will happen, and there is predictability—in will go the evidence about the defendant's character, which will usually consist of his previous convictions. 
 Secondly, there are cases in which propensity and similar fact evidence can be established. The incidence of such cases is fairly restricted, and my hon. Friend the Member for Woking referred to the calling card case. In some sex cases, there is the defendant's modus operandi. There are therefore several illustrations that one can use, and lawyers do not usually have too much trouble with them. 
 As the hon. Member for Stafford said, there is, of course, a whole series of grey areas. Case by case, the courts have widened the scope of cross-examination into areas of greater uncertainty. That is not necessarily improper, although some cases have caused me slight unease. Such developments can be seen particularly where allegations of bad character are made against the defendant, but he has no formal convictions. Evidence can be adduced from people in the community where he lives who are prepared to testify to his very bad character. 
 That principle does not bother me. Indeed, I can see that it has force. Someone may have terrorised a housing estate for five years but escaped prosecution during his reign of terror. When he is finally prosecuted, the fact that everyone on that estate is willing to give evidence about the reign of terror, particularly if it is linked to the offence for which he is being tried, appears to have some relevance. If it has no link to the offence for which he is being tried, the relevance starts to seep away quite quickly. If it concerns his terrorising an estate as a 16-year-old tearaway, and he is being tried at the age of 40 for a fraud offence and has apparently lived a life of respectability in the intervening period, it probably has no relevance and should not be admitted.

David Kidney: Can the hon. Gentleman confirm that trial judges always make that test before deciding whether to admit the evidence?

Dominic Grieve: Yes. That brings me to the next question that the Committee needs to consider. The disadvantage of common law rules—I have my ''Archbold'' by my side—is that a few closely typed pages of case law, interpretation and suggestion are put forward for the delectation of lawyers late at night, as the defence try to make up their minds whether they can successfully resist their client's character being put in, or the prosecutor wonders whether he is justified in making an application to put it in; and the poor old
 judge has to look at them when deciding how to resolve those issues.
 The merit of common law rules is that they are constantly evolving. As the hon. Member for Stafford pointed out, the trend is for courts to widen areas of admissibility. Just as the area can widen in certain cases to cover the sort of bad character that includes not only previous convictions, so, when it suddenly becomes apparent that things may have been pushed too far, the Court of Appeal finds itself able to rein it all back in during a judgment the following week or the week after—another Court of Appeal decision and the matter is changed. It has always been thought to be one of the strengths of our common law system that it provides a great degree of flexibility; we have a powerful belief in the value of law that is incrementally developed. 
 The downside of what we are attempting to do is that the law may be codified in a way that is different from the current rules. Indeed, I have not the slightest doubt that that is exactly what we will do. Having done so, we shall have to live with the consequences. If it emerges that the manner of the codification is causing problems and unease, it will be much more difficult for the steer to be given to push things back in the right direction. Although judges may try to produce flexibility within the code, I suspect that it will prove to be much more difficult than without it. 
 That is not an argument against having a code. As I said at the outset, it will make it much easier for a lawyer to see, at least initially, how matters stand. The code that we are about to introduce appears to provide for an enormously wide number of circumstances in which bad character can be admitted—albeit with a potential for judicial restriction. That turns on its head the previous concept, which was that bad character was not usually admitted and did not arise except in certain circumstances. That is an enormously profound change, and we must ensure that it is done correctly.

Lady Hermon: May I draw to the hon. Gentleman's attention a paragraph from a letter that I received from the Minister in response to what I said on Second Reading? It was a very good letter, because it opened my eyes to what the clause is about.
''The starting point for our proposals is that juries and magistrates should be entitled to hear the widest range of evidence that will help them to reach a fair verdict and that relevant evidence should only be excluded for good reason.''
 The starting point is the widest range; instead of starting from a narrow range and going out, they are doing the reverse.

Dominic Grieve: I am grateful to the hon. Lady. I might have seen that letter—it rings bells in my mind, so it might have been circulated elsewhere. Certainly the wording struck me immediately. That is, indeed, the intention. I hope that the Minister will take the opportunity of the debate to explain the rationale behind that decision. I understand it to be the Government's view that that basic principle will be conducive to a better system of justice. I have serious doubts about that. I cannot see why it should be so,
 because either there is evidence that someone did something or there is not.
 The evidence that someone did or did not do something rarely has anything to do with the evidence of his previous bad character. There might be circumstances—the obvious example being those in which there is a major dispute about the credibility of a prosecution witness and it is helpful to know about the defendant's propensity to tell the truth—in which previous convictions give a guide. One of the great ironies is that when someone's bad character is given in evidence, the only relevant issue is whether he has been believed or disbelieved in the past, whereas what happens is that everything is held against him, including issues that might not have relevance to his truthfulness. 
 The difficulty is that it is apparent from that letter that the Government believe that past history is a powerful probative indicator of a capacity to commit an offence, and that that can properly be taken into account in deciding whether the offence for which the charge has been brought has been committed. We shall discuss that in greater detail in relation to later clauses. However, as a principle it horrifies me. It does not bear any rational scrutiny. It is one thing to say that there might be cases in which one can show similar fact. To say that, in a case in which someone is accused of a burglary in which the evidence against him is very poor, one can get round that by citing the 45 previous ones that he committed, is a logical fallacy. It will lead to very serious injustice if, as a result of what we are doing here, it is allowed to become the norm.

Simon Hughes: I left that issue because I thought that it would come up later, but the hon. Gentleman has raised it now. It is another huge question that affects the whole criminal justice system. The criminal justice system is geared to catching people who are accused of having done something wrong, convicting them if they have done it and then punishing them with a view—that is part of the objective of the system—to rehabilitation. This system is geared to reducing the belief in rehabilitation, because it presumes that the person who has been naughty before will be less capable of rehabilitation. That is a second reason why it is fundamentally wrong in the interests of justice. It is another presumption against people going straight when they might have gone wrong in the past.

Dominic Grieve: I agree entirely with the hon. Gentleman.
 I should now like to consider clause 81. I apologise to the Committee if I have widened the scope of the debate, but all the clauses are so closely interlinked that it is difficult to disentangle them. One must look at the basic principles before one can start an examination of the clauses. The first thing that strikes me is that clause 81 is enormously widely drawn. Amendment No. 362, which suggests that we should leave out subsection (1)(a), was designed to illustrate that point. If it were omitted, it would make no difference, because subsection (1)(b) covers everything. It covers previous convictions, previous 
 acquittals, allegations that, as an eight-year-old, an accused misbehaved and was told off by his parents and that he was used to telling fibs. It covers everything, subject to judicial discretion. Its basic principle is that, unless someone decides that it should be left out, everything can go in. If we are to have paragraph (b), we do not need paragraph (a). I hope that that highlights the immensity of the scope of the proposed change. 
 On top of that, as my hon. Friend the Member for Woking has said, 
''shows or tends to show''
 is enormously wide. The words ''tends to show'' must be linked to the words in subsection (b), so that the legislation would read 
''tends to show . . . that it might be viewed''.
 That is the high point of the expansion of the doctrine—there is evidence that tends to show that someone has behaved or is disposed to behave in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person. That is all that is needed to get over the threshold of the principle of the admissibility of such evidence. That is going much too far. 
 I accept that some of the attempts to change the clause that we have made through amendments might not be ideal. However, all that we can do is to offer ideas to the Minister. If he thinks that there is some merit in the points that we are making about the scope of the clause, perhaps his officials can work on them.

David Kidney: Before the hon. Gentleman finishes, will he acknowledge that this is the wording of the Law Commission's draft Bill, and that it applies to all witnesses, not just to defendants?

Dominic Grieve: I accept that entirely. Even applied to other witnesses, I find it a rather widely drawn principle—it illustrates the difficulty of codification and of drawing up codification on such a complex issue. That might be a powerful argument for leaving well alone. I am not persuaded. I am willing to go through this exercise in Committee and on Report to see whether we can arrive at something that codifies in a way that provides protection. If we do not succeed in getting the Government to reconsider the issue, we shall make some proposals on Report to rewrite the clauses so as to provide for codification in a way that will protect the common-law position. I have not offered them to the Committee today because we need to analyse the issues—

Humfrey Malins: Does my hon. Friend accept that, arising from what the hon. Member for Stafford said regarding the scope of the clause, there will be a sea change in jury trials from now on? So much time will be spent on such issues that the question of the evidence that the defendant has committed the crime—always the principal question in the past—could become secondary. We are in danger of having our eyes taken off the ball. What should concern us is the real evidence.

Dominic Grieve: I agree entirely. That was one of the things that concerned me when I read the provision. Although it will produce clarity in the rules, it will lead
 to many more applications to adduce bad character of various kinds than before. Doubtless over time that will sort itself out, as judges' decisions percolate down, but rather as the Human Rights Act 1998 did, the measure has the capacity to allow an initial free-for-all, which will be time-consuming and costly and will indeed take people's eye off the ball—which is the issue of whether there is evidence to show that the person did or did not commit the offence.
 I have an anxiety that that is where the provision will lead. At present, evidence of bad character tends to be introduced rather reluctantly, with those concerned reasoning, ''In view of what has happened, we should make an application.'' Now, cases will start with the prosecution asking, ''What evidence of bad character might we be able to have admitted?'' That will be one of the first questions that prosecuting counsel will discuss with the solicitor from the Crown Prosecution Service in preparing a case. In the past, in my experience, that has simply never happened. It will be a big change.

Simon Hughes: I only want to flag something up, since we are in a way listing objections now, which is perfectly reasonable; does the hon. Gentleman accept the further objection that has been raised in some submissions—that defendants, knowing of the effect that he describes, will be much more likely to elect for jury trial, where there is at least a separation of the debate and the evidence before the judge? In a lower court there is no such separation and the same person hears the debate about the evidence and the debate about the facts.
 Secondly, to deal with the point made by the hon. Member for Stafford, the provision works against the Government's objective of getting witnesses to give evidence. The chance of witnesses, many of whom come from criminal backgrounds, being more willing to give evidence will be hugely reduced if they know that their life history will probably be exposed in court. That flies in the face of Government objectives.

Dominic Grieve: I agree with the hon. Gentleman's point about people electing trial at the Crown court because of the rules. Generally speaking—perhaps my hon. Friend the Member for Woking will correct me—a magistrate may have to make a ruling and consider bad character issues, but he will not usually be aware of bad character when he is trying a case, unless the issue arises. I can see that that issue will be relevant.

Hilary Benn: I hear the arguments that the hon. Gentleman is making against the change, but does he accept that the provisions would provide much better protection for witnesses against having their character dragged through the mud when they give evidence than at present?

Dominic Grieve: Yes, I can see that in some circumstances they would. The obvious example would be the case of a man of good character standing trial. It might be felt that there could be a free-for-all in examining the bad character of prosecution witnesses. The Bill would provide greater protection in that case. To that extent I apologise; perhaps I am missing points. I focused on the point that the hon. Member for Southwark, North and
 Bermondsey made about Crown court trial, which is very pertinent. However, the Minister is right that the Bill gives greater protection against attacks on witnesses' character. We shall, indeed, need to think about that to decide whether justice will be done. On the whole I am prepared to consider it.
 Amendment No. 434 is not a very happy amendment. I think that it was suggested by an outside organisation. The point being made is that evidence of bad character might be more than just evidence; it might be questions tending to make reference to, or asked with a view to eliciting, such evidence, or behaviour in asking questions that had a similar tendency. I think that that problem can be dealt with elsewhere. 
 There are ways of getting information to juries other than by eliciting answers from witnesses. Although it is frowned on, one has seen enough of such tactics in one's time to know that questions may be asked, or comments made, that may give an impression of a background of bad character. People get away with doing that. That is what the amendment is intended to highlight. 
 Having considered what are, to my mind, the principles of the matter, and relating those to clause 81, I conclude that we are dealing with a classic piece of modern drafting. I have seen the phenomenon before on other Bills. One starts with a statement that is incredibly wide—as happened with the Proceeds of Crime Act 2002—and then one begins to add restriction clauses. That is a dangerous way to proceed. There may be no other way to proceed, but each clause should be studied separately. 
 Clause 81, taken alone as a bald statement of bad character, is drawn much wider than anything that I could conceivably think of as pertaining to the sorts of bad character that are currently adduced in the courts. It is for that reason that I am so troubled by it. I hope that the amendments may stimulate some sensible discussion.

Paul Stinchcombe: I accept some parts of the hon. Gentleman's argument, but does he agree that clause 81 defines the nature of the evidence of bad character that might be admitted and clause 84 defines the circumstances in which it might be admitted, and that the wider clause 81 is drawn the narrower clause 84 should be drawn?

Dominic Grieve: I accept that there is an interrelationship between the clauses, which was the reason for my preliminary comments. The trouble is that legislation establishes principles and sends out signals. We know what signal the Government are trying to send with the Bill. It is that, generally speaking, evidence of bad character and previous convictions should be admitted unless restrictions are applied. That is a principle with which I do not agree. I approach the matter, philosophically, from a completely different angle. My attitude is that in criminal trials in this country we have been well served by the basic principle that previous bad character is irrelevant and should be excluded. Indeed, steps
 should be taken at every stage of the proceedings to try to ensure that such information does not come before the jury unless certain exceptions apply. We are turning that on its head and clause 81 is a good place to begin discussing that.

James Clappison: I was a member of the Home Affairs Committee that produced the report and I share some of the concerns that it expressed. I must go slightly wide to frame my comments on the clause and amendments, but I should say that I believe that there is a case for using previous convictions more widely than at present. There are circumstances in which juries need to hear evidence of previous convictions. I believe that that puts them in the picture. However, if we are to go through the exercise of extending the circumstances in which evidence of previous bad character or convictions is admitted, we should very carefully scrutinise the way that we go about it.
 The conclusions of the Home Affairs Committee reflected the evidence that it heard. We heard the views of eminent legal authorities. The general concern that was expressed was that evidence of character might tend to deflect from the central question of whether the defendant had actually committed the offence. The chairman of the Criminal Bar Association put it very well. He said: 
''We are very concerned it is going to be a rule where we will have convictions going in on a much wider basis, which we feel could cause unfair trial and, indeed, miscarriages of justice, because the fact-finder will be deflected from the real issue in the case''.
 That is the risk to which the Committee must address itself in examining the amendments and clauses. 
 I agree with the comments of my hon. Friends about clause 81. It goes very wide. However, as the hon. Member for Wellingborough rightly said, it is subject to clause 84 and for character to be adduced the admissibility test under that clause would have to be passed. However, the definition is very wide, and I am concerned that the police and prosecuting authorities will use it in considering the previous character of the defendant in order to see whether they can make it fit the test of clause 84. How far might they look? They could take in a wide variety of circumstances.

Lady Hermon: Could the hon. Gentleman comment on what the Home Affairs Committee thought about spent convictions under the Rehabilitation of Offenders Act 1974? How do spent convictions stand up in the light of clause 81?

James Clappison: We shall come to that. The hon. Lady is right to draw attention to what the Home Affairs Committee has said. We must consider what we are saying about rehabilitation. The clause would cover not just rehabilitated offences but anything at all. We should be concerned about whether the police and the prosecuting authorities are to spend their time investigating the evidence and the facts of offences, or whether they are going to trawl through the previous character of defendants in order to see what they can come up with that will come within the ambit of clause 84. That is part of the wider concern that the Home
 Affairs Committee expressed about these clauses. The time and effort of the prosecuting authorities and the police, and later the attention of the jury, might be deflected from the evidence relating to the crime if they are looking too much at evidence of character, previous convictions and the widely drawn definition of character.

Paul Stinchcombe: I, too, think that the clause is extremely widely drawn. I am sure that, in the view of my children, I have behaved in a way that would fall within subsection (1)(b). However, I do not believe that the attack should be made on that clause so much as on clause 84. Clause 81 defines bad character in a way that is broadly in conformity with existing common law—certainly as recommended by the Law Commission. It properly reflects the kind of evidence that might, in limited circumstances, be proper to admit in a criminal trial. The question is, what are those proper limited circumstances? I should have thought that they obtained when the evidence was both relevant and probative to the issues at stake in the trial. If that is covered at all, it will be in clause 84. I await with great interest the debate on that clause, to see whether the restrictions are narrow enough to limit the potential harm caused by the breadth of clause 81. If they are, I have no problem with the clause, but if they do not define the circumstances adequately narrowly, it could do damage.

Simon Hughes: The debate has flagged up the importance of this part of the Bill, and the concerns that many of us have about the fact that, by pursuing this course, we are turning round the presumptions. We are starting at a point that is contrary to the good tradition of the criminal law in England and Wales and Northern Ireland. That is the wrong way to go.
 If we retain a wide definition in clause 81, we shall be in difficulty. I shall give two examples to illustrate why it should be more tightly drawn, rather than leaving it—as the hon. Member for Wellingborough suggests—to the gateways provided in clause 84. Clause 84(1)(c) would allow the admissibility of bad character, as defined in the clause that some of us seek to narrow, if it is important explanatory evidence. 
 According to clause 85, evidence is considered to be ''Important explanatory evidence'' if 
''(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
 (b) its value for understanding the case as a whole is substantial.''
 What might be important in explaining somebody's life pattern and past behaviour might easily be admitted under a combination of clauses 81, 84 and 85, as it might be thought that it would be difficult for the jury properly to understand other evidence without it. Somebody could argue that a jury might find it difficult to understand what happened without knowing what sort of person the defendant is. That could allow all sorts of improbable evidence to be admitted. 
 Let me give another example. Take clauses 81, 84 and 87. Clause 84(1)(e), which deals with the 
 admissibility of evidence of a defendant's bad character, states that 
''it is relevant to an important matter in issue between the defendant and the prosecution''
 Clause 87(1) states that 
''matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged''
 We have heard from the hon. Member for Beaconsfield, from me and from others that ''propensity'' is not sufficient. By definition, somebody with previous convictions or from a particular background or whose parents have a criminal record would have a greater propensity to commit certain offences. That could easily be argued. Doing that would open up the trail that takes us from clause 81 through 84 and 85. Suddenly we have evidence of behaviour that, according to clause 81(1)(b), might be 
''viewed with disapproval by a reasonable person.''
 The door has been opened. I understand how the drafting has been done. One tries to find an ''Oxford English Dictionary'' definition of bad character and then give the circumstances in which it is admissible. This is not an attempt to rewrite the English dictionary; it is an attempt to rewrite the preconditions for the admission of evidence under English law. We are not seeking to arrive at a general understanding of what constitutes bad character. We are not debating how we judge bad character; that is not the test. We should be seeking to define bad character for the purposes of the admissibility of evidence in criminal law. We should not go further than that. 
 Amendments Nos. 469 and 363 go to the heart of the debate. We must remove from the definition of previous lifestyle or behaviour things that fall short of convictions; there is all the difference in the world between convictions and other activities. Above all, there is no need at all for the hugely broad definition in clause 81(1)(b). I will ask leave to withdraw—

Eric Illsley: Order. It might be appropriate before the hon. Gentleman withdraws any amendment to allow the Minister to respond.

Simon Hughes: I agree, but the Minister—

Eric Illsley: Order. I understand that the hon. Gentleman wants to withdraw one amendment and vote on another, but we can organise Divisions very easily.

Simon Hughes: I will seek to press amendment No. 469 to a vote. I also hope that we can vote on amendment No. 363.

Eric Illsley: Before I call the Minister, let me say that it is unsatisfactory that hon. Members are moving amendments and summing up the debates before the Minister has had a chance to respond. We really should go back to the system whereby the mover moves the amendment, the Minister responds and the amendment is withdrawn or there is a vote.

Hilary Benn: Thank you, Mr. Illsley. Your comments highlight my endless willingness to listen to hon. Members' arguments before speaking.
 We have had an important debate on an extremely important part of the Bill, and it is right that we have given it careful consideration. I am genuinely grateful to all those who have spoken, because, as they said, this part of the Bill fundamentally changes the system. That is precisely the Government's intention, and it is important to make that clear at the beginning. 
 The hon. Member for Woking said there were more important things that we should be doing, such as catching criminals. I simply observe that there is not a competition between the current proposals and the pursuit of criminals. If it is right to make the present change, we should do so. At the same time, we all subscribe to his view that the more criminals we can catch, the better. This is not an either/or issue. 
 The hon. Gentleman argued that there was no great cry for a change, but that is not the Law Commission's view. It said: 
''The present law suffers from a number of defects which we identify in a later chapter of this report. In summary, however, they constitute a haphazard mixture of statute and common law rules which produce inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the fact-finders whilst often exposing witnesses to gratuitous and humiliating exposure of long forgotten misconduct.''

Humfrey Malins: Does the Law Commission entirely agree with the extent of the Government's proposals?

Hilary Benn: I will come to that. The Government have taken the Law Commission's recommendations as a foundation, but we propose to go further.
 In a pretty telling condemnation of the system, Sir Robin Auld said: 
''It has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty . . . it is not an honest system in that it does not do what it is claimed to do.''
 The case for change has been well made, and hon. Members who have spoken accept the argument for changing the current position.

Lady Hermon: The quotations from Sir Robin Auld and the Law Commission describe their judgment that the present rules are unfair, and that is what should be addressed. They do not recommend that the present rules should be extended, so the Minister's quotations do not support the Government's case.

Hilary Benn: I do not accept that argument. I used those quotations in response to the hon. Member for Woking, who said that there was no great cry to change the system. However, that is not the view of the Law Commission or of Sir Robin Auld. The hon. Member for Beaconsfield accepted that there was an argument for codifying the present complex and messy situation. There is therefore a case for making a change, although I entirely accept that other hon. Members do not like the Government's proposals. However, the case for change is extremely well made.

David Cameron: The Minister has talked about a cry for change and quoted the Law Commission in saying that it would go as far as the Government. Could we have some evidence of that? The Government propose
 to make a big change. A number of people who follow the issue closely say that in many cases we shall poison the well of fair trials. Could we have some facts or some figures about, for instance, conviction rates falling, or jurisdictions that do things differently and have better outcomes? Can we have some scientific evidence, rather than some words from the Law Commission, which does not agree actually agree with what the Government propose?

Hilary Benn: If the hon. Gentleman will bear with me, I shall try respond to those points in advancing my argument. In the Law Commission report No. 273 on evidence about character and criminal proceedings, the second most favoured option, in response to the consultation that was undertaken, was for there to be evidence about character in all circumstances, in every case. There was a substantial body of opinion—not a majority—that argued that the law should in fact be changed even more than the Government propose.

Dominic Grieve: That may be the case—

Hilary Benn: It is.

Dominic Grieve: Yes, but that does not mean that it is right. It is noteworthy that the Law Commission actually said:
''we believe that the wisest course is to maintain a general rule against the disclosure of the defendant's criminal record.''
 That is precisely what the clause and subsequent clauses will turn on its head. The presumption of admissibility has been raised, then exceptions have been provided, which is an important philosophical difference.

Hilary Benn: The hon. Gentleman is absolutely right, and that is precisely what the Government propose to do.
 On the wording of the clause, as has been pointed out, the definition is that which the Law Commission proposed in its report No. 273. There is a minor difference, in that evidence to do with the facts of the case, its investigation or prosecution, is excluded from the definition under the Government's proposals. However, there is no substantial difference, as the Law Commission recommended that that evidence should be admissible without leave in any event. The only slight difference in wording reflects a structural difference between the Bill and the Law Commission's drafting.

James Clappison: Will the Minister bear in mind the need to temper what comes from such eminent authorities with the views of practitioners? Will he cast his mind back to the experiences that led to a previous Criminal Justice Act, the 1991 Act, introduced by a previous Conservative Government, during which similar eminent legal authority recommended restricting the taking into account of previous convictions for the purposes of sentencing? That was an absolute disaster and had to be reversed by the last Conservative Government.

Hilary Benn: I listened with interest to the hon. Gentleman's confession on behalf of his party in relation to the previously proposed change in the law. I read with interest the list of people and organisations
 that commented on the consultation paper listed on pages 244–247 of the Law Commission's report. They all seem to work at the sharp end. The hon. Member for Woking made a point in relation to that matter.

Ian Lucas: May I pick up on a point that the hon. Member for Beaconsfield made? He said that there was a presumption that bad character would be admissible because of the clause. That goes to the heart of the way in which the Opposition misrepresent the position in the clause. Clause 84 says:
''In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—''
 and there follows a number of circumstances. It is absolutely untrue to say that there is a presumption that evidence is admissible in all criminal cases.

Hilary Benn: My hon. Friend is right to draw the Committee's attention to the interrelationship between the definition in the clause and the circumstances in which such evidence is admissible, a point that my hon. Friend the Member for Wellingborough made. It is undoubtedly true that the Government's proposals turn the test that the Law Commission recommended, because the Government think that that is the right way to proceed.
 I do not want to anticipate your decision, Mr. Illsley, on whether we shall need a clause stand part debate, but it seems to me that the debate on the amendment has ranged widely—and properly so—round the nature of the clause. The scope of the definition is far-reaching, in order to ensure than any evidence that is treated as bad character evidence at common law is also covered by the statutory regime. If that were not the case, the abolition of the common-law rules governing bad character evidence—we shall come to those on clause 82—would mean that evidence not covered by the statutory definition would fall outside the scheme and be generally admissible. The definition is intended to be comprehensive about the sort of evidence to which particular considerations of admissibility should apply. 
 The definition encompasses in the first instance evidence that shows that a person has committed an offence, such as previous conviction, but also evidence that tends to show that a person has committed an offence. That is to cover evidence that relates to charges for which the defendant is currently being tried—for example, where a number of related charges are tried together and the evidence on one charge is relevant to another. It would also cover evidence relating to charges for which the defendant was acquitted. The evidence of witnesses to previous charges may well be relevant to the current charge, as the House of Lords acknowledged in the case of Z.

Humfrey Malins: Is a man facing a charge that has not been heard entitled to call himself a man of good character with no previous convictions?

Hilary Benn: It would depend on the circumstances.

Vera Baird: Surely the House of Lords in the case of Z made it perfectly plain that if that individual was of good character, the fact that he had
 previously been acquitted of three rapes would none the less have been put in evidence.

Humfrey Malins: It is not a question of being previously being acquitted of anything. It is a person who is merely facing charges that are not yet tried. If he is before the court but faces other charges elsewhere, that person is still a person of good character with no previous convictions. Is that contrary to what the Minister is saying?

Hilary Benn: The hon. Gentleman is right that the evidence could go in.

Ian Lucas: My understanding of criminal trials is that there could never be an assertion by the defence that an individual was of good character if he had previous convictions. If so, it would be likely that evidence of those convictions would be put before the court.

Hilary Benn: My hon. Friend is right in relation to previous convictions, but I understood the hon. Member for Woking to be raising a different point, the answer to which is yes, such a person would still be a person of good character, but in the circumstances the evidence could well go in.

Dominic Grieve: This is one of the key issues. We shall return to the matter on clause 84, but as we have already raised the question we might as well deal with it now. If it is possible for a person to make the assertion that he is a person of good character with no convictions yet it is possible for evidence for evidence of previous acquittals to be put in, it makes a mockery of the system. Indeed, under clause 84 it could be admitted in rebuttal of the good character without the leave of the court. The Minister will be embarking on a most tormented procedure once he goes down that road.

Hilary Benn: I do not agree with the hon. Gentleman that it is a tormented procedure. No doubt we shall return to the subject on clause 84. It is a procedure that, for the reasons that I advanced earlier, will try and clarify the circumstances in which such evidence of the defendant's bad character is admissible.

Vera Baird: The hon. Gentlemen are completely at variance with the House of Lords. A person who has been tried and acquitted ought, in theory, to be in a stronger position than one who has never been tried and acquitted to present himself as having a good character. However, Z makes it clear that even though a person has been acquitted, what happened in the acquitted offences might still be considered if it is relevant. He might say that he is of good character, but the House of Lords would say that it does not matter; what happened previously can still be used. There is nothing new in this.

Hilary Benn: I am grateful for that intervention.

James Clappison: On a point of order, Mr. Illsley. Is there any facility whereby members of the Committee who are non-lawyers or, as in my case, very rusty lawyers, can have the benefit of seeing the learned opinions in cases such as Z—and X and Y for that matter—so that we can understand such important and distinguished academic discourses?

Eric Illsley: I cannot help with that. I am afraid that the hon. Gentleman will have to seek the advice of the Library or some other organisation.

Simon Hughes: Does the Minister accept that some of us find both examples equally unacceptable? It is unacceptable that evidence against somebody who has been tried but whose case has not been concluded should be put in as evidence of bad character. In addition, some of us are not comfortable about the House of Lords decision. We would strongly argue that people who have been acquitted should be entitled to say that they are still of good character. If they have no previous convictions, they must be presumed to be of good character. Neither the House of Lords ruling nor the Minister's argument is persuasive.

Hilary Benn: I hear the hon. Gentleman. He is not persuaded, but the Government take a different view. The contrary argument might be to consider somebody who has been tried and acquitted twice for rape and is tried for rape a third time. Is that evidence of bad character? It goes to the heart of the issue. The hon. Gentleman might say that it does not indicate bad character, because the person was acquitted and is therefore entitled to claim that he is of good character. Does common sense suggest, to put it in a very un-lawyerly way, that that information may be relevant, subject to the tests and protections of clause 84? Should it be excluded in all circumstances? If that is the hon. Gentleman's argument, I do not agree.

Simon Hughes: As the Minister knows, it is a central issue. The problem with his position is that it works on the basis that a trial that concludes in an acquittal does not have the same decisiveness as a trial that concludes in a conviction: if one has a conviction, one becomes of bad character, but if one has an acquittal, or one is not convicted but other proceedings are under way, that does not hold one in good stead. That is not a fair justice system. The system is supposed to determine guilt and innocence. If somebody is determined to be not guilty, that has always meant innocent—not partly, possibly or conditionally innocent.

Hilary Benn: Again, I hear the argument, but I am not persuaded. To take the example that I have given, how many times would somebody have to be charged and acquitted of rape for the hon. Gentleman to start to feel uneasy that there was a pattern of conduct that an ordinary lay person might consider to be relevant enough to take it into account and give it weight—subject to the important safeguard of clause 84 that its probative value outweighs its prejudicial effect? A lot of jurors would find it hard to understand why information that they would regard as helpful in reaching a judgment is prevented from being put before them. That is one of the arguments for making the fundamental change.

Simon Hughes: I understand the argument, but that changes jury trial from being trial on the allegation and on the facts to trial on the basis of one's history, which is unreasonable and unjustified. Of course, the jury is always likely to be influenced by knowledge of previous allegations, proved or unproved, and that is
 the reason why it has previously been thought improper to include them.

Hilary Benn: Of course, in the case of Z, the relevant issue was not the previous acquittal but the evidence of complainants in earlier cases. Such evidence is currently admissible under the Z judgment. I understand that the hon. Member for Woking expressed reservations about that, but if, over time, a series of complainants have made complaints against an individual, that evidence is admissible, notwithstanding the hon. Gentleman's argument that the defendant was acquitted in the previous cases. Common sense suggests that a jury in a subsequent rape trial should have the opportunity to be aware of that information and to weigh it in the balance with all the evidence relating to the case.
 Is the hon. Gentleman saying that the jury should not be able to use their judgment and that we should not trust them to weigh all the evidence in the balance? That would mean that the court would tell the jury that it must have regard to all the evidence of the case, although evidence that was adduced from complainants in earlier trials would not be included. If he is saying that the jury should not have access to such information, that is his opinion and I respect it, but I do not agree with it.

Humfrey Malins: Leaving aside the issue of previous acquittals, is the Minister saying that, even if the defendant in the dock has no previous convictions and no previous court appearances and holds himself out as a man of good character, the fact that he has been charged with another offence that has not yet come to court could be put before the jury under clause 84(1)(g) to correct a false impression? If that information were put before a jury, would propensity or credibility be in question?

Hilary Benn: That brings me to my next point, but I hope that I will also be able to answer the hon. Gentleman's question.
 I was about to say that the definition also extends, in subsection (1)(b), to behaviour that is not illegal but, as the Law Commission recommended, might be viewed with disapproval by a reasonable person. There may well be evidence of conduct or disposition that is relevant to the case: for example, in an allegation of racially motivated assault, evidence that a person had previously acted in a racist manner. That was one of the examples cited in the Law Commission report in support of the wording that it drafted. Such information might also be evidence of disposition, rather than conduct. However, as the Law Commission pointed out, a rule that distinguished between the two would fail to deal, for example, with evidence that a man had admitted to a sexual interest in children while denying that he had ever acted on that interest, yet that evidence might be relevant in certain cases.

David Kidney: The hon. Member for Woking is still waiting for an answer to his question about what would happen if someone was charged. Could that person say that he was of good character? I agree with the hon. Member for Hertsmere (Mr. Clappison) that if we had some basic information, we could answer
 such questions. The Criminal Evidence Act 1898, of which Opposition Members have spoken with approval, states that the evidence that can be admitted once the shield is lost includes being charged with an offence, whether or not it is the same offence as the one with which the person is currently charged. That is the law already and has been for more than 100 years.

Hilary Benn: That is most helpful. I am sure that this debate will send lots of hon. Members off to the Library to consider the cases to which we have referred.
 On the next point that the hon. Member for Woking raised, at present relevant evidence of that nature would be admissible if it meant that one of the common-law statutory exceptions to the general rule prohibited the use of evidence of previous misconduct or disposition. In the light of the Bill's proposed abolition of all the common-law rules on bad character evidence, we must ensure that the evidence comes within the new statutory scheme or it would be generally admissible. 
 In answer to the hon. Gentleman's specific question about whether cautions, conditional cautions, restraining orders and being bound over could be included, the answer is yes—if they met the other tests. I am grateful to him for raising that point. 
 Subsection (2) makes it clear that the provisions do not apply to evidence that has to do with the alleged facts of the offence with which the defendant is charged, or with the prosecution or investigation of that offence. That ensures that the evidence of the prosecution and the defence on the facts of the offence is not subject to any rules of admissibility, nor envisaged evidence that is currently admissible as part of the res gestae—matters that immediately relate to the facts of the offence.

Lady Hermon: Will the Minister respond to my question about spent convictions under the Rehabilitation of Offenders Act 1974? Are those convictions spent or not?

Hilary Benn: There may be circumstances in which those provisions could be included. Again, they would be subject to the tests that we shall debate on clause 84.
 Many amendments have been tabled, although not all are likely to be insisted on. The purpose of all the amendments is to restrict the admissibility of bad character evidence in certain ways. As has already been acknowledged, they fail to achieve that purpose. I recognise that they are, in part, probing amendments, because clause 81 must be read in conjunction with clause 82, which abolishes all the common-law rules that relate to bad character evidence. That means that all evidence of previous misconduct, or propensity other than that covered by the definition, will be generally admissible, subject to the requirement for bare relevance. 
 The Law Commission pointed out that it is necessary for the definition to go wider than previous convictions, as a range of other potentially prejudicial character evidence might be relevant to a case, but, in light of its potential effect, that character evidence 
 should fall within the rules for admissibility rather than be generally admissible. We agree. The amendments would not only offer defendants inadequate safeguards but would be regrettable for witnesses. They would enable attacks to be made on non-defendants, based on the excluded evidence of bad character, outside the terms of clause 83. That would significantly restrict the new protection that the clause would extend to witnesses. 
 Amendments Nos. 361 to 363 would exclude all evidence other than that of previous convictions. As my hon. Friend the Member for Wellingborough said, that would be far more restrictive than the current law.

Dominic Grieve: That cannot be right in respect of amendment No. 362, as that amendment does the reverse. It was designed to remove subsection (1)(a), which is not needed because subsection (1)(b) is so widely drafted that it covers committing or tending to commit an offence, and other matters besides.

Hilary Benn: I acknowledge the hon. Gentleman's point about amendment No. 362. The reason that the Government do not accept those amendments is that they would be much more restrictive than the current law. We have heard the example of the case of Z. There is also the case of DPP v. P, which included evidence on related charges for which the defendant was concurrently being tried, which might be properly cross-admissible if, for example, there were a number of separate but related allegations of sexual assault, as there were in that case.
 Amendment No. 469 would require evidence of previous conviction to be one of similar facts to the offence charged. However, that would be unnecessarily restrictive as it would over-emphasise the issue of similarity in the probative value of the evidence. Although similarity may be very important in some circumstances—for example, where the previous conduct shows a signature such as to identify the defendant as the perpetrator—that is not always the case. For example, when a person is found in possession of a significant quantity of drugs, previous convictions for supply are relevant to a charge of possession with intent to supply, even if there is not a strong coincidence between the type of drugs or whether they were found in the defendant's home, or on his person or in his car. 
 The definition of bad character under clause 81 applies equally to defendants and non-defendants. Even if the reference to charge were modified, a requirement for similarity would clearly render inadmissible anything other than a narrow range of evidence relating to a defendant's credibility. How, in those circumstances, is the similarity to be judged? 
 Amendment No. 395 deals with evidence of disposition. That may well be highly relevant, and we consider in principle that it should be capable of being given. Indeed, the Law Commission stated in its 2001 report: 
''we do not think it would be sensible to draw a distinction between evidence of conduct and evidence of disposition which has not (or cannot be shown to have) manifested itself in conduct. For example, a rule incorporating such a distinction would fail to require leave for evidence that a man had admitted a sexual interest in children, whilst denying ever having acted on that interest.''
 I also gave the example of racist attitudes. 
 Amendments Nos. 467 and 468 would have a different effect. They would require the evidence ''clearly'' or ''conclusively'' to show that the commission of an offence or the conduct might be viewed with disapproval. That would potentially create a high threshold for admissibility. Where the defendant had been found guilty of a previous offence, arguably only the fact of conviction would meet the requirement proposed in the amendments. That would exclude evidence that showed, but not conclusively, that the defendant was guilty of offences, or provided details about the offences where the defendant had been found guilty. For example, witness statements from the trials relating to the previous offences might not be admissible as they do not, in themselves, conclusively show that a defendant had been convicted. 
 Moreover, evidence that related to offences for which the defendant had been acquitted would certainly be excluded, even though the common law has recently recognised that where the requirements of admissibility are otherwise met, the fact that the evidence relates to a charge for which the defendant was acquitted is not a bar to the evidence being given. That was an important development in the common law, which we seek to preserve. 
 The intention of amendment No. 434 is that not only should evidence of bad character need to meet the conditions of the Bill, but questions relating to such evidence should not be asked unless that evidence itself would be admissible. That would secure two things: questions could not be put about that inadmissible evidence; and if there was any doubt, the admissibility of evidence to which the questions related would need to be established before they could be put. However, we consider that both objectives are properly secured without the proposed reference. 
 The first suggests that without specific provision to disallow questions about inadmissible items of evidence, it would be perfectly proper for counsel to ask such questions, even where it is perfectly clear that the evidence is inadmissible. That simply is not right. The exclusionary rules of evidence apply both to examination in chief and to cross-examination. The question that seeks to raise inadmissible matters would therefore be improper. However, there will clearly be cases where the admissibility of an item of evidence is not cut and dried, and there is a proper debate to had about whether it should go in. That raises the second issue, which is how to control such questions before they are put, in case the evidence that they relate to is, in the event, ruled inadmissible. 
 The Bill, and the current procedures, already provide sufficient scope for ensuring that questions of admissibility are dealt with before the evidence is adduced or questions asked. For example, the prosecution provide a copy of their case to the defence in advance of the proceedings. That will alert the defendant to the fact that they intend to adduce evidence of bad character, including where they intend to ask questions of a witness to elicit it. The defendant 
 will then have an opportunity to apply to the court to have the evidence excluded. 
 Where that is not done in advance of the opening of the trial, it is common for counsel to alert the court to any potential questions of law, such as admissibility, that need to be decided before the issue comes before the court. That works well now, and there is no reason to expect that it would not do so in future. For cross-examination, a procedure has developed under the Criminal Evidence Act 1898 for a prosecution to seek a ruling from the court that the Act's provisions are engaged and on the extent to which the defendant's previous convictions can be revealed in consequence. There is no reason to believe that a similar practice will not develop under these provisions, ensuring that only questions dealing with matters that can properly be raised in cross-examination are put.

Vera Baird: I am not sure whether there is to be a clause stand part debate, so I mention this now. Can my hon. Friend assure me that nothing in the definition in subsection (1)(b), when applied to a victim or witness, will allow in the previous sexual history of a complainant in a rape trial so as to undermine the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999?

Hilary Benn: I shall reflect on the matter and respond to my hon. Friend.

Simon Hughes: We are in some difficulty, because we have gone to the new form of drafting, whereby the definition is at the beginning and the conditions come later. We are therefore debating things that would probably be better debated had we debated clause 84 first. However, the principles have been raised and we are clear about those. I understand the Minister's argument, but I am absolutely not persuaded. That is the fundamental divide between us. There are those who understand the need for codification—I subscribe to that and have argued for it—and want to replace common law that is obscure with something that sets out the rules clearly. The ''Archbold'' example given by the hon. Member for Beaconsfield is right: when people have to piece together statute law, common law and case law, as the hon. Member for Hertsmere tellingly said, it is difficult for them to understand where we are at. I sign up to having rules that are clear and in statute. However, they must preserve the presumption of innocence.
 On that basis, I shall press the Committee to a vote on amendment No. 469. I understand that there is a wish that amendment No. 363 also be the subject of a Division. Those are the amendments that concern the two fundamental issues in the clause. I understand the arguments that the Minister gave in response to amendments Nos. 467 and 468. They would set a high threshold, but until we are satisfied that the other protections are in place, we shall seek to make the threshold so high. Whether or not we win the argument on this clause, we cannot be comfortable about signing up to the removal of common-law protection and its replacement by statutory alternatives if those alternatives are not sufficient. 
 That will determine how we vote in the debates to come. 
 I beg to ask leave to withdraw amendment No. 467. 
 Amendment, by leave, withdrawn. 
 Amendment proposed, No. 469, in 
clause 81, page 50, line 11, leave out 'committed an offence' and insert 
 'been convicted of a previous offence of similar facts as the one with which he is charged'.—[Simon Hughes.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 12.

Question accordingly negatived. 
 Amendment proposed: No. 363, in 
clause 81, page 50, line 11, leave out from 'offence' to end of line 13.—[Mr. Malins.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 12.

Question accordingly negatived.

Humfrey Malins: I beg to move amendment No. 396, in
clause 81, page 50, line 19, at end insert 
 'or 
 (c) relates to spent convictions.'.
 The amendment deals with the relevance of spent convictions under the Rehabilitation of Offenders Act 1974, and I simply ask the Minister to enlighten us on the issue. We all know that the directions that judges give on spent convictions can vary. In the civilian world, as opposed to the criminal world, spent convictions cannot be referred to—the conviction is truly spent. There are, however, circumstances in which the courts may refer to a spent conviction, although they are pretty reluctant to do so unless they have to, and there is a general presumption that such convictions should be left alone. 
 Sometimes, a judge will give a full character direction in relation to spent convictions, so I ask the Minister to tell us about their relevance. The hon. Member for North Down also referred to them a moment ago.

Hilary Benn: The amendment would exclude spent convictions, which were the subject of a question from the hon. Member for North Down, from the scope of the scheme. That would put such convictions on a par with evidence to do with the alleged facts of the offence, or of misconduct in connection with its investigation or prosecution, which are currently excluded under subsection (2).
 The purpose of the current exclusions is that, subject to the general requirement of relevance, such evidence should be admissible outside the terms of the Bill. It is so central to the facts of the case that it should not be subject to particular rules of admissibility. Abolishing the common-law rules on bad character evidence, as proposed in clause 82, ensures that any evidence of previous misconduct or disposition outside the definition in clause 81(1) is generally admissible. Therefore there are dangers in equating spent convictions with evidence that is central to the prosecution and defence of a case. 
 Were amendment No. 396 accepted, evidence of spent convictions would be admissible subject to the Practice Direction (Crime: Spent Convictions) 1975. The Rehabilitation of Offenders Act 1974 does not apply to criminal proceedings. However, the 1975 direction directs the court to have regard to the spirit of the Act by refusing to allow any mention to be made of a spent conviction, except where it is in the interests of justice. However, without the supporting framework of the similar fact rule or any of the other common-law rules, that would create a good deal of confusion in deciding when exactly a conviction should be admitted. 
 Instead, we consider that spent convictions, like other potentially prejudicial evidence of character, should be subject to the rules set out in the Bill. The intention behind the amendment may have been to preclude the admission of spent convictions entirely—I recognise that it is a probing amendment. As I have tried to make clear, it does not achieve that, and even if it did, we would remain opposed to it. There may be circumstances in which a spent conviction is relevant to a current charge. It may, for example, be useful in showing a pattern of offending that would otherwise not be apparent. It might also be necessary to adduce it to correct a false impression given by the defendant. It may also have a particularly high probative value through a very close similarity between the conviction and the current charge, identifying that the defendant might well have been the perpetrator. Where the evidence is relevant in these or other ways, it should be capable of being admitted. 
 That said, safeguards are required to protect the defendant against the use of evidence that is marginally probative but may have a prejudicial effect. However, clause 84(3) will ensure that evidence of bad character is not admitted in such circumstances, and clause 84(4) specifically directs the court to consider the age of a conviction when 
 assessing its probative value. Thus, when the relevance of a conviction has diminished through age—a point raised by the hon. Member for North Down and the hon. Member for Southwark, North and Bermondsey—the court will take that into account in deciding whether it should be excluded. 
 This offers a more coherent and principled scheme than providing for arbitrary exclusion. Where the conditions in clause 84(3) are not made out—in other words, the evidence is more probative than prejudicial—the court should hear it.

Simon Hughes: I understand the argument that there are cases when previous convictions and convictions considered spent under the Rehabilitation of Offenders Act 1974 might none the less for the purposes of a criminal trial be included. The Minister's Department produced a report on the rehabilitation of offenders with a view to suggesting changes in the law, and I had a discussion with officials about what should be in it. If the law defining a spent conviction is to change, that puts a different complexion on matters. The report came out about a year ago and must by now have received responses. I expected its amended proposals to have come before Parliament for legislation—perhaps that will happen in the next Parliament. How far advanced is Home Office consideration of the proposals? Are they a priority or are they merely in the pipeline?

Hilary Benn: I am grateful to the hon. Gentleman for drawing attention to that. In a sense, he answered his own question when he said ''in the pipeline''. That remains the position.

Simon Hughes: Thank you. I believe that the hon. Member for North Down has something to contribute on the subject.

Lady Hermon: I thank the hon. Gentleman. Will he ask the Minister particularly to consider the circumstances of those prisoners who came out under the Good Friday agreement, under the early release scheme? I understand that this legislation will extend to Northern Ireland, so what is the position of those prisoners? Will their convictions be regarded as being spent or will they be relevant?

Simon Hughes: The hon. Lady's point is particularly significant in the context of the current debates in Northern Ireland about amnesties and previous convictions and the potential repatriation, as it were, of the criminal justice system to Northern Ireland. Perhaps the Minister will be good enough to reflect on the question, talk to colleagues in the Northern Ireland Office and let us all have an answer. We all understand that there is an added dimension in the context of Northern Ireland.
 The Minister gave a traditional response—

Hilary Benn: It was an honest answer.

Simon Hughes: I understand that. I hope that the Government will implement the proposals in the report. There is good evidence that there is a strong case that the law needs to be reformed in terms of the
 rehabilitation of offenders. If that is done, and the law is changed as a result of this legislation in a way that affects which otherwise spent convictions can or cannot be included, the two will be interrelated. People with an interest in the matter will need to consider both the proposals in the pipeline and this legislation.

Hilary Benn: I take the hon. Gentleman's point about the importance of a review of the Rehabilitation of Offenders Act 1974, but I am not sure that the point that he is making directly relates to whether spent convictions should be considered in these circumstances. As I said in my response to the hon. Member for Woking, it would depend on the circumstances. I gave some examples of cases in which spent convictions may be included. They would apply regardless of how the definition of ''spent'' was changed by subsequent proposals.

Simon Hughes: I understand and agree. My point was that if one changes the rules governing spent convictions, by definition the impact of what is admitted changes.

Dominic Grieve: I have been pre-empted. We know from the Widgery guidelines of 1974 and the practice direction on the Rehabilitation of Offenders Act that if a conviction is spent it may still be used in evidence—the very point that the Minister has made. However, the presumption against that happening is raised. It has always been my view—that is why I am looking forward to the legislation so much—that the current Rehabilitation of Offenders Act, particularly in respect of offences committed by juveniles, bears little relation to reality and is very harsh in its application. I think that—through review of the Act and new rules—we shall get an extension that enables many convictions to become spent sooner.
 The generality of the Government's paper on the subject tends in that direction. That will undoubtedly provide a powerful protection against spent convictions being bandied about in court under these provisions. The Minister has reassured us that there is no reason why the basic Widgery guidelines will be changed by the legislation.

Simon Hughes: Has the hon. Gentleman given any thought—I do not know the answer—to whether the Government have it in mind to deal with the cases in which what was an offence is no longer an offence, so what could have been a conviction would no longer be a conviction? I remember the issue being raised in the House in relation to the age of consent and other things that were formerly offences. It is a secondary issue in this context.

Dominic Grieve: That raises an interesting point. If somebody says, ''I am a law-abiding citizen,'' but has previously broken the law, that might be held to his detriment even if he would not now break the law by carrying out the conduct that was alleged against him at the time. It is not completely clear-cut.

Hilary Benn: I can confirm what the hon. Gentleman said. I take this opportunity to go back to the point raised by the hon. Member for North Down about Northern Ireland prisoners. The convictions of those prisoners released under the
 Good Friday agreement would have the same status as all other convictions: they are potentially admissible in subsequent cases, subject to the safeguards that we have been discussing.

Dominic Grieve: I have seen this in court on many occasions, which is why I am so keen to preserve that flexibility. I hope that it will be preserved. Judges raise their eyes to the ceiling when prosecutors attempt to bring in ancient offences—or indeed offences that are nowadays no longer regarded as serious. They simply exclude them. That is the safeguard of the judiciary being able to exercise its discretion. It is important, in bringing about the code, that we do not fetter that discretion by giving a nudge to the judiciary in a direction that is inimical to the interests of justice.

Humfrey Malins: We have had a useful debate. It was a probing amendment, and I shall not press it to a Division. However, although Committee members acknowledge that spent convictions can have relevance in the criminal courts from time to time, the attitude is different in the outside world. Although the criminal law is exempt, the reality is that section 4 of the 1974 Act—I had forgotten that it is nearly 30 years old—has the effect that a person who has become a rehabilitated person for the purposes of the Act in respect of a conviction, known as a spent conviction, should be treated for all purposes in law as a person who has not committed, been charged with, prosecuted for, convicted of or sentenced for the offence or offences that were the subject of that conviction.
 It was the purpose of the Act to send the message that it was possible not only to live down one's crimes and make amends to society but for society to recognise that fact by saying that the conviction was spent. I remember vividly in my early days of appearing in court that good people who were defendants were always anxious to find out at what stage they could again call themselves people of good character. 
 My hon. Friend the Member for Beaconsfield referred again to giving the judges a nudge—the tenor of clause 81 means, I am afraid, that we shall be giving judges something of a nudge away from the principles that we spoke of a little earlier. I hope that the Minister will consider the matter of spent convictions, so that if the law on spent convictions needs reform, or tightening up or amending, they will still mean what people always thought they did. This has been a useful short debate, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:— 
 The Committee divided: Ayes 12, Noes 8.

Question accordingly agreed to. 
 Clause 81 ordered to stand part of the Bill.

Clause 82 - Abolition of common law rules

Simon Hughes: In one sentence, we shall vote against the clause because we do not believe that the present law should be done away with until there is a satisfactory alternative.

Dominic Grieve: I was going to speak for more than a sentence. I want to know the impact of subsection (2) on maintaining the common-law rules for a person's reputation. I have looked at clause 102(1); I find it quite interesting, because if I understand it correctly—I wait for the Minister's response—it seems to be an interesting example of trying to codify the rules and then noticing that one issue cannot be codified that might be to the advantage of doing damage to a defendant.
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.